Elimination of the CSB would result in the termination of about 50 staff members and reduce federal spending by only $12 million annually. The CSB’s current budget, for perspective, is equivalent to about one-tenth of 1 percent of EPA’s annual budget. Because the CSB was specifically authorized by the Clean Air Act Amendments of 1990, it can only be formally eliminated by legislation. Zeroing out the Board’s budget would not, therefore, remove the statutory provisions authorizing the CSB. Interestingly, although the CSB would be unable to function without staff, zeroing out the budget would not eliminate the Board members which are appointed by the President and confirmed by the Senate. So, while the budget proposal would render the Board unable to function, the current four board members would remain in office until they resign or they each reach the end of their respective five-year terms.
Because the Board was intended to pursue a purely investigative function—as opposed to an enforcement function—it was originally anticipated that investigators would have cooperation from industry, including ready access to witnesses and evidence needed to determine the cause of industrial accidents. More recently, however, some personnel in the food processing industry have voiced concern about the blurring of lines between the CSB’s originally intended function and the enforcement investigations pursued by agencies like the EPA and OSHA. In recent years there has also been concern about the quality of management at the CSB. For example, a 2014 federal survey showed that employee satisfaction at the CSB was the lowest of any federal agency. In fact, the Chair resigned in 2015 due, at least in part, to management issues at the CSB.
Despite these concerns, many industry leaders continue to support the Board’s investigatory function originally intended by Congress and appreciate the safety benefits that can be achieved when the Board pursues its mission. As a result, these leaders do not want to see the Board defunded. Rather, there is support for refocusing the Board on its core mission, instituting reforms to address the historic management and employee dissatisfaction problems and ensuring that the Board does not cross into the enforcement lanes occupied by regulatory agencies like the EPA and OSHA when it conducts its work.
At this time, there has not been a vocal call for the outright elimination of the Board and its mission in Congress. It is far from certain, therefore, that Congress will eliminate the CSB. The small fiscal savings of eliminating the CSB come at a potentially high cost to worker and community safety. However, even if the Board is defunded now, it could be relatively easily restored by a future administration with the simple allocation of new funding. Recognizing that the votes do not appear to be available to amend the Clean Air Act to eliminate the statutory authorization for the CSB, it would be worthwhile to channel the energy generated by the proposal to defund the agency into a productive exploration of how to refocus the CSB in a manner that would allow it to successfully serve its originally intended purpose of improving chemical process safety across multiple industries, especially in food processing.
Boer, who formerly worked in the Environmental Enforcement Section at the Department of Justice, is currently a partner with Hunton & Williams LLP and represents private companies, utilities, and individuals in federal and state environmental litigation and in defense of environmental enforcement actions and citizen suits. Reach him at JTBoer@hunton.com.
AUTHOR’S NOTE: This article presents the views of the author(s) and do not necessarily reflect those of Hunton & Williams or its clients. The information presented is for general information and education purposes. No legal advice is intended to be conveyed; readers should consult with legal counsel with respect to any legal advice they require related to the subject matter of the article.